UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-5038

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RASHIAD ROBINSON, a/k/a Day Day, a/k/a D,

Defendant - Appellant.

Appeal from the United States District Court for the Northern 

District of West Virginia, at Martinsburg. John Preston Bailey, 

Chief District Judge. (3:11-cr-00012-JPB-DJJ-1)

Submitted: April 30, 2012 Decided: May 3, 2012

Before WILKINSON, KING, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Kristen M. Leddy, Research and Writing Specialist, Nicholas J. 

Compton, Assistant Federal Public Defender, Martinsburg, West 

Virginia, for Appellant. William J. Ihlenfeld, II, United 

States Attorney, Erin K. Reisenweber, Assistant United States 

Attorney, Martinsburg, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Rashiad Robinson appeals his sentence of 151 months of 

imprisonment imposed following his guilty plea to distributing 

cocaine base, in violation of 21 U.S.C. § 841(a) (2006). 

Robinson contends that the district court erred in declining to 

apply the various statutory amendments effected by the Fair 

Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat. 

2372, when calculating his Guidelines range. The Government, 

although not conceding error, submits that any such error was 

harmless. We agree, and accordingly affirm.*

When considering whether preserved procedural 

sentencing errors like the one alleged here require 

resentencing, we apply a harmless error standard. See United 

States v. Boulware, 604 F.3d 832, 838 (4th Cir. 2010). 

Accordingly, we may affirm a sentence despite a district court’s 

procedural sentencing error if the Government can demonstrate 

that the error “did not have a substantial and injurious effect 

or influence on the result and we can say with fair assurance 

 * Whether the FSA applies to defendants like Robinson who 

were sentenced after the FSA’s August 3, 2010 effective date but 

whose offense conduct occurred prior to that date will be 

considered by the Supreme Court in Dorsey v. United States, __ 

U.S. __, 2011 WL 3422126 (U.S. Nov. 28, 2011) (No. 11-5683), and 

Hill v. United States, ___ U.S. ___, 2011 WL 3472365 (U.S. Nov. 

28, 2011) (No. 11-5721) (consolidated with Dorsey). 

Nevertheless, we may resolve Robinson’s appeal without reaching 

the issue. 
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that” the district court’s sentence was not affected by the 

error. Id. (internal quotation marks and alterations omitted). 

Here, assuming, without finding, error by the district 

court, the Government is able to carry this burden. In 

pertinent part, the FSA increased the threshold quantities of 

cocaine base needed to trigger certain statutory maximum 

sentences. Had the district court applied these amended 

statutory maximums in Robinson’s case, his Guidelines range 

would have been 151 to 188 months’ imprisonment, appreciably 

lower than the 188 to 235-month range the district court 

calculated at Robinson’s sentencing. See 21 U.S.C.A.

§ 841(b)(1)(B)-(C) (West 1999 & Supp. 2011); U.S. Sentencing 

Guidelines Manual (“USSG”) § 4B1.1(a)-(b) (2010); USSG ch. 5, 

pt. A. (sentencing table).

However, when sentencing Robinson, the district court 

departed downward two levels, to reach “the same effect as if 

[the court had] found that the Fair Sentencing Act applied.” 

Accordingly, because the district court elected to sentence 

Robinson as though the FSA applied to him, despite its finding 

that the FSA did not so apply, Robinson received the benefit of 

the FSA. We can thus say with fair assurance that Robinson’s 

sentence was not affected by the alleged error.

Therefore, we affirm the judgment below. We dispense 

with oral argument because the facts and legal contentions are 
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adequately presented in the materials before the court and 

argument would not aid the decisional process.

AFFIRMED